EXHIBIT C.5.b
THIRTEENTH SUPPLEMENTAL LOAN AGREEMENT
Between
BUSINESS FINANCE AUTHORITY
OF THE STATE OF NEW HAMPSHIRE
and
NEW ENGLAND POWER COMPANY
Dated as of August 1, 1998
Supplementing the Loan Agreement between
The Industrial Development Authority
of the State of New Hampshire and
New England Power Company
dated as of November 15, 1983,
as Heretofore Amended by a
First Supplemental Loan Agreement
dated as of April 1, 1986, a
Second Supplemental Loan Agreement
dated as of August 1, 1988, a
Third Supplemental Loan Agreement
dated as of April 1, 1989, a
Fourth Supplemental Loan Agreement
dated as of November 1, 1990, a
Fifth Supplemental Loan Agreement
dated as of June 15, 1991, a
Sixth Supplemental Loan Agreement
dated as of January 1, 1993, a
Seventh Supplemental Loan Agreement
dated as of October 1, 1993, an
Eighth Supplemental Loan Agreement
dated as of December 1, 1993, a
Ninth Supplemental Loan Agreement
dated as of February 1, 1995, a
Tenth Supplemental Loan Agreement
dated as of January 1, 1996, an
Eleventh Supplemental Loan Agreement
dated as of January 15, 1996 and a
Twelfth Supplemental Loan Agreement
dated as of December 1, 1996
TABLE OF CONTENTS
Section 1. Definitions. . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Amendments to Original Loan Agreement. . . . . . . . . . 2
Section 3. Severability . . . . . . . . . . . . . . . . . . . . . . 3
Section 4. Counterparts . . . . . . . . . . . . . . . . . . . . . . 3
Section 5. Captions . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 6. Governing Law. . . . . . . . . . . . . . . . . . . . . . 3
Section 7. Binding Effect . . . . . . . . . . . . . . . . . . . . . 4
Section 8. Obligations of the Company Under the Indenture . . . . . 4
THIRTEENTH SUPPLEMENTAL LOAN AGREEMENT
This Thirteenth Supplemental Loan Agreement dated as of August 1, 1998
(the "Thirteenth Supplemental Loan Agreement") is between the Business Finance
Authority of the State of New Hampshire, a body politic and corporate
(previously named The Industrial Development Authority of the State of New
Hampshire) established under Chapter 162-A:3 of the Revised Statutes of the
State of New Hampshire (the "Authority"), and New England Power Company, a
corporation organized and existing under the laws of The Commonwealth of
Massachusetts (the "Company"). The Authority is authorized by Chapter 162-I
of the Revised Statutes of the State of New Hampshire (the "Act") to finance
pollution control facilities through the issue of its industrial revenue
bonds. The purpose of this Thirteenth Supplemental Loan Agreement is to amend
a Loan Agreement between the Authority and the Company dated as of November
15, 1983 (the "Original Loan Agreement"), to which this instrument is
supplemental.
It is hereby agreed as follows:
Section 1. Definitions. For purposes hereof, the following words shall
have the following meanings:
"Loan Agreement" means the Original Loan Agreement as amended and
supplemented by the First Supplemental Loan Agreement dated as of April 1,
1986, the Second Supplemental Loan Agreement dated as of August 1, 1988, the
Third Supplemental Loan Agreement dated as of April 1, 1989, the Fourth
Supplemental Loan Agreement dated as of November 1, 1990, the Fifth
Supplemental Loan Agreement dated as of June 15, 1991, the Sixth Supplemental
Loan Agreement dated as of January 1, 1993, the Seventh Supplemental Loan
Agreement dated as of October 1, 1993, the Eighth Supplemental Loan Agreement
dated as of December 1, 1993, the Ninth Supplemental Loan Agreement dated as
of February 1, 1995, the Tenth Supplemental Loan Agreement dated as of January
1, 1996, the Eleventh Supplemental Loan Agreement dated as of January 15,
1996, the Twelfth Supplemental Loan Agreement dated as of December 1, 1996 and
this Thirteenth Supplemental Loan Agreement.
"Fourteenth Supplemental Indenture" means the Fourteenth Supplemental
Indenture between the Authority and State Street Bank and Trust Company, as
Trustee, dated as of August 1, 1998, supplementing and amending the Trust
Indenture between the Authority and said Trustee (as successor to BayBank
Middlesex) dated as of November 15, 1983 (the "Original Indenture" and, as
supplemented and amended by the First Supplemental Indenture dated as of April
1, 1986, the Second Supplemental Indenture dated as of August 1, 1988, the
Third Supplemental Indenture dated as of April 1, 1989, the Fourth
Supplemental Indenture dated as of November 1, 1990, the Fifth Supplemental
Indenture dated as of June 15, 1991, the Sixth Supplemental Indenture dated as
of January 1, 1993, the Seventh Supplemental Indenture dated as of October 1,
1993, the Eighth Supplemental Indenture dated as of December 1, 1993, the
Ninth Supplemental Indenture dated as of July 1, 1994, the Tenth Supplemental
Indenture dated as of February 1, 1995, the Eleventh Supplemental Indenture
dated as of January 1, 1995, the Twelfth Supplemental Indenture dated as of
January 15, 1996, the Thirteenth Supplemental Indenture dated as of December
1, 1996, and the Fourteenth Supplemental Indenture, the "Indenture").
Capitalized terms which are not defined herein but which are defined in
the Original Loan Agreement shall have the respective meanings attributed to
them therein.
Section 2. Amendments to Original Loan Agreement. Upon the surrender
to the Company of the General and Refunding Mortgage Bonds held by the Trustee
pursuant to Section 16A of the Original Indenture (as added by the Thirteenth
Supplemental Indenture and amended by the Fourteenth Supplemental Indenture),
the Loan Agreement shall be amended as follows:
A. Section 6(c) of the Original Loan Agreement shall read as follows:
(c) Maintenance of Corporate Existence; Assignment
of Rights and Obligations; Qualification in New
Hampshire. It will maintain its corporate existence and
will not dissolve, merge or consolidate into another
corporation, or permit one or more other corporations to
merge into it, unless the successor corporation assumes
in writing the Company's obligations under the Loan
Agreement and the Indenture. The Company may assign its
rights and obligations under this Agreement with respect
to all or any series or subseries of the Bonds on or
after the date of a mandatory tender of all of the
affected Bonds for purchase pursuant to Section 2.09 of
the Fourth Supplemental Indenture (including the
mandatory tender upon which the General and Refunding
Mortgage Bonds are surrendered by the Trustee), provided
that the assignee of such rights and obligations is a
member of the same affiliated group within the meaning of
Code sec. 1504 and such assignee assumes in writing all
of the Company's obligations under the Loan Agreement and
the Indenture with respect to the affected Bonds. The
Company shall not dispose of all or substantially all of
its assets, unless either (i) the transferee of such
assets assumes in writing the Company's obligations under
the Loan Agreement and the Indenture or (ii) such
disposition occurs on or after the date of a mandatory
tender for purchase of all of the affected Bonds pursuant
to Section 2.09 of the Fourth Supplemental Indenture. Any
such assignment of rights and obligations under this
Agreement or disposition of assets occurring after the
date of mandatory tender referenced in the two preceding
sentences may only occur if the Bondholders purchasing
the affected Bonds on or after such mandatory tender date
were informed on or before the applicable date of
purchase, either through a remarketing circular, official
statement or other disclosure document or information, of
the proposed assignment or disposition. Compliance with
the preceding sentence shall be conclusively evidenced by
a certificate of the Company delivered to the Authority
and the Trustee no later than the effective date of the
proposed assignment or disposition to the effect that the
Company has complied with the applicable requirements of
such preceding sentences. So long as the Bonds are
outstanding, the Company (including any successor,
assignee, or transferee under this Section 6(c)) shall at all times
either be organized under the laws of New Hampshire or qualified to do
business therein and shall at all times be in good standing in New
Hampshire.
B. Section 6 of the Original Loan Agreement is amended by adding at
the end thereof the following new subsection:
(e) Liens. The Company will not incur, issue, assume, create or
suffer to exist any lien on or with respect to any of its properties or
assets, whether now owned or hereafter acquired, or assign any right to
receive income, other than Permitted Liens, as hereinafter defined,
unless such lien is extended to also secure the Company's obligations
with respect to the Bonds on a parity basis. For purposes of this
subsection, "Permitted Liens" shall mean such of the following as to
which no enforcement, collection, execution, levy or foreclosure
proceeding shall have been commenced: (a) liens for taxes, assessments
and governmental charges or levies to the extent not required to be paid
or to the extent any such tax, assessment, charge or claim is being
contested in good faith and by proper proceedings and as to which
appropriate reserves are being maintained, unless and until any lien
resulting therefrom attaches to its property and becomes enforceable
against its other creditors.; (b) liens imposed by law, such as
materialmen's , mechanics', carriers', workmen's and repairmen's liens
and other similar liens arising in the ordinary course of business; (c)
pledges or deposits to secure obligations under workers' compensation
laws or similar legislation or to secure public or statutory
obligations; (d) easements, rights of way and other encumbrances on
title to real property that do not render title to the property
encumbered thereby unmarketable or materially adversely effect the use
of such property for its present purposes; (e) liens created by or
resulting from any litigation or other proceeding which is being
contested in good faith by appropriate proceedings; and (f) purchase
money liens upon or in any real property or equipment acquired or held
by the Company in the ordinary course of business to secure the purchase
price of such property or equipment or to secure debt incurred solely
for the purpose of financing the acquisition of such property or
equipment, or liens existing on such property or equipment at the time
of its acquisition (other than any such liens created in contemplation
of such acquisition that were not incurred to finance the acquisition of
such property) or extensions, renewals or replacements of any of the
foregoing for the same or a lesser amount, provided, however, that no
such lien shall extend to or cover any properties of any character other
than the real property or equipment being acquired, and no such
extension, renewal or replacement shall extend to or cover any
properties not theretofore subject to the lien being extended, renewed
or replaced.
Section 3. Severability. In the event that any provision of this
Thirteenth Supplemental Loan Agreement shall be held to be invalid in any
circumstance, such invalidity shall not affect any other provisions or
circumstances.
Section 4. Counterparts. This Thirteenth Supplemental Loan Agreement
may be executed and delivered in any number of counterparts, each of which
shall be deemed to be an original, but such counterparts together shall
constitute one and the same instrument.
Section 5. Captions. The captions in this Thirteenth Supplemental Loan
Agreement are for convenience only and shall not affect the construction
hereof.
Section 6. Governing Law. This instrument shall be governed by the
laws of The State of New Hampshire.
Section 7. Binding Effect. This Thirteenth Supplemental Loan Agreement
shall inure to the benefit of and be binding on the Authority and the Company
and their respective successors and assigns (including, without limitation,
the Trustee as grantee and assignee under the Indenture in accordance with all
the terms thereof and hereof).
Section 8. Obligations of the Company Under the Indenture. The Company
hereby assumes and agrees to perform all of the obligations imposed upon it
under the Indenture and shall be entitled to all rights and benefits granted
to it or on its behalf thereunder.
IN WITNESS WHEREOF, the parties have caused this Thirteenth Supplemental
Loan Agreement to be duly executed and their respective seals to be hereunto
affixed, all as of the date first above written.
BUSINESS FINANCE AUTHORITY OF THE STATE
OF NEW HAMPSHIRE
[Seal]
By:______________________________
Executive Director
NEW ENGLAND POWER COMPANY
[Seal]
s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By:______________________________
Treasurer
Attest:
s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
_____________________________
Assistant Clerk